( 



Ti luioffl imu § 




¥ rfi 



PUBLISHED III THE RICHMOND EiTQUIREr!,, AVIUL 10. 1850. 



';/) 



The Delay "Pi^ Cause — Frealund stronger ohjedioris to the 

admission of Galifornia—The jeoplc Suath of 36.30 uncn- 
imous/y oppO!cd "to forming a State Government— Pro- 
posal in Convention to divide, le.-.ving Sou/hern California 
uilli a Tenitorial, and Norlhrn with a State Govern- 
ment— Confe.sions of Dr. Gwii of California's ti-ant of 
means to s'lipnort a State Government— Paramount claims 
of ike State <f Dcseret to be admUed into the Union — Her 
Constitution, the oldest by seven mo'ths— Larger permanent 
populaiion—The Conflict of loundaries— California's 
Boundaries usurp 65,UnO s:piare "Mes of the State of De- 
scret— Fourteen of .the members qj the California Conven- 
tion eleetcd by the people of Deseet, and sent from that 

folate The efxt Jf California is ■dmitted into the Union 

before her Convention has'made an Ordinance renoxmcing 
all title to the Gold Region and p<ulic domain icithin her 
limits, that vast properly icill be irrlrievably sacrificed, and 
lost to the United Stales, (|-c. 

Vhe Ion? interval which has eiaop-' '^etwpc-n the iast and 
the present number of "Rundolph '■ Roanoke," would im- 
jily that the gloom and peril I depir-d in the former, menaced 
the Union no longer, and had .wed away. Devoutly thank- 
ful should 1 be. had there been/y auspicious showings like 
these to ease oil' and account A 'he interval. But no— noc 
one gkam of sunshine has 'riglitened the prospect. Day 
by day, has been added to th P^^^^ ^'"'^ ^'^^^ the hopes of the 
futur^gloomierand worse. The untimely fall of the noble 
and f/r-seeing Calhoun h* complicated our destiny, and sad- 
dene/ our prospects. Fen the "God-like Daniel," under 
the stress of the free f ders, quails and recoils in the Senate; 
and'oblivious already jf his loftiest achievement in the pub- 
! JicZouncils, of hav-'g f'lrved himself a niche in every pa- 
I tri/t's bosom, ani^' of linking his name with sentiments 
I, wAich must have .nade it as wide-spread and as immortal as 
' I/tters, behold him undoing now all he has said, and, with the 
Zeal of a Seward, urging onward a measure, and forcing a 
rerisis where the/inion must be saved or wrecked — saved if 
lit fails — wrecko^if >t triumphs. True, I have noticed move- 
ments in the free States, asserting the South's equal rights in 
the new territories, and promising fair. Tammany Hall 
has spoken counsels, which, brought to fulfilment, would 
close the controversy. Popular meetings in Pennsylvania, 
and elsewhere, have laid down bases of settlement (includintr 
the admission of California '^wilh suitable boundaries") fit 
for acceptance by all concerned. Michigan has loosed the 
hands of her eminent Senator from the crushing weight of 
her anti-slavery instructions, and there he is in the Senate 
untrammelled and free; and, to crown the measure of good 
tidings, the Democracy of New Hampshire and Connecticut 
have Won fresh and decisive triumphs in contests upon princi- 
ple over political free soilism in every hue and phase of its 
combinations. All this is gratifying to contemplate — very. 
But I don't see the goodly fruits of it in Congress. The 
men of the free States, instead of bating of their pretensions, 
as these popular demonstrations would justify and perhaps 
require, seem to busy themselves rather with the affairs of 
the South, and watching every show of indifference and 
sparkle of collision there, are gathering courage to carry 
their measures, through a mere power of numbers, and to 
force a settlement without making any concession at all. — 
Talk to the reasonable men of the North about the equal 
rights of the South, and none can speak you more fairly, for 
they admit them fully; but the moment you enter the door 
v\_uh a practical appliance of it, equality takes flight out 
ot ihe window. If we are talked to as men, we are dealt with 
as cliildren. If the South complains of a severing of the 
issues, j,nd the North blends them in one, it considers that 
compha^ce enough, and that the South should be satisfied, 
however obno.xious the provisions enffrafted upon any of the 
associated measures. A most excellent man, and clear and 
Vigorous of mind, is the House's Chairman of the Commit- 
tee on leiritories, Mr. McClernand of Illinois. In con- 
science, I do not doubt at all, but that he aims to be fair and 
-°s to be just, yet it is but a day or two since, that he in- 
- bill of peace, embracing all issues, to settle this 
"' and the very first item of his compromise 
^„ "'^°' California as she is! He overlook- 

ling inequality of applying the anti- 
.fornia, both North and South of 36 30, 
,.„. ,. r "^'h, at a dash ot the pen, of fully 75 per 

centum, ol her whole interest in the new territories SouUi 



slavery l. 
and robbin 



of the line; and as the Department of Slate, (through its in- ^^7 
struction to Mr. Kin.?,) has imdertaken to frighten South- 
erners away from enj<)ying any portion of the remaining 25 
per centum of interest, through the mystic revealinaS'of the 
Mexican statute books — the finale will be, that of the whole 
Mexican cession, not an acre will be left the South for mi- 
gration and settlement, and not a solace will be her's, for 
blasted expectations and wounded pride, except that her des- 
titution was wrought through the Calif or nia and Executive, 
and not through the Wilinot Proviso. A pest upon such 
Provisos and compromises evermore! 

JVo, no! Under the portentous omens gathering here, 
wivile a hope could flntter me of doing good, my strivings for 
the Uni(m would have continued, but for physical prostration 
and shattered health. After seeing Gov. Riley's Proclama- 
tion, the Constitutior.s of both Descret and California, and 
the debates in the Convention of the latter, I was more than 
anxious, I was eager to lay the additional and overwhelming 
obiections Jo the {'.dinission of California, which thev sug- 
gested una eitab!i-:;i2d, before every public; functionary 
charged with the adjustment of this peace-destroying strug- 
gle; and I avail myself of the earliest gleam of convalescence 
to perform that duty now. 

1. The People of Califosni.\ South or 3G deg. 30 min. 
Unanimously Opposed Ueing Incorporated into Cali- 
fornia AS A State. — From these jjapers it is plainly infer- 
able that the people of California, resident South of the line 
36 deg. 30 min., neither gave their previous assent, but were 
decidedly opposed, and, as far as the votes of their delegation 
in the Convention are to be trusted, unanimously, to the cre- 
ation of any State government which should include them; and 
they positively instructed their delegation to oppose any 
such measure. They do not appear to have been previously 
consulted about it at all. As far as they were concerned, the 
whole matter appears to have originated with the Executive 
Department of this Government, and to have been made 
known to them, and for the first time, through the Procla- 
mation of General Riley of June 3d, 1849. That Proclama- 
tion named the Districts, fi,xed their limits, the qualifications 
of the voters, the number of delegates, &c.; and, to justify 
himself for these extraordinary proceedings before the peo- 
ple of California and the Union, he declared at the foot of 
the Proclamation, that this was "The course advised by the 
President and by ihe Secretaries of State and of War of the 
United States." So much for the origin, or, what Mr. Clay- 
ton would call, l\\e suggestion of the movement. 

The four districts representing the country lying South of 
36 deg. 30 min., were San Diego, Puebla de los Angelas^ 
Santa Barbara, and San Luis Obispo, and they were allow- 
ed together 16 delegates to the Convention. All of them 
who were present at the time, voted unanimously against the 
formation of a State Constitution for California — and as they 
declared that they were instructed so to vote, of course their 
colleagues, if present, would have united with them. Tljo 
terms of the resolution were these : 

"Resolved, That it is expedient that this Convention now 
proceed to form a State Constitution for California." 

From "the Debates in the Convention of California," I 
make a few extracts from some of the speeches of members 
representing those districts: 

Mr. S. C. Foster, from the district of Los Angelas, sug- 
gested "that the resolution to appoint a committee be put in 
such shape, as to give the opinion of the House directly ou 
the subject of the form of government. Some members were 
in favor of a Territorial Government. For one, he ii-as op- 
posed at present to entering into a State Government." 

Mr. H. Teift, from the "district of San Luis Obispo, said, 
"there was another reason why the two questions should bw 
separated. If gentlemen were honest in stating that the two 
resolutions would have the same eifcct, it was yielding no- 
tninir, to comply with the wishes of those who desired to re- 
cordtheir vote in fa^or of a Territorial Government. He 
icag compelled, in compliance with the wishes of h^ constitu- 
ents, to vote for a Territorial Guvernment." 

1 shall introduce but one extract more from the Debates. 
It derives an additional importance from the fact that the 
Spealcer was a native Mexican of considerable note in that 
section of California, and was actually elected a delegate 
from each of the districts of Los Angelas and Santa Barba- 
ra and thus spoke : — 

Mr. J. A. Carillo said, "The first question pught to be 
whether California was to remain a Territory or be formed 



72881 

into a S\'afe. Whatever determinntTon tfrerrilniglit be on that 
subject, he thought a committee ought to be appointed tore- 
port upon it, that members might record their votes on that 
question alone if they so desired it." * * * "He repre- 
sented one of the most respectable communities in Cahfor- 
nia, and he did not believe it to be the interest nf his constitu- 
entsthat a State Government should be formed. At the same 
time, as a great majority of this Convention appeared to be 
in favor of a State Government, he proposed that the coun- 
try SHOULD BE DIVIDED BY RUNNING A LINE EasT FROM SaN 

Luis Obispo, so that all North of that line might have 
A State Government, and all South thereof a Territo- 
rial Government. He and his colleagues were under instruc- 
tions to vote for a 1\rritorial organization. He took this 
view because he believed it to be for the interest of his constitu- 
ents." * * * "He had nothing further to say, except that 
he conceived it to be the interest of his constituents, if a 
Territorial Government could not be formed for the whole 
country, that the country should be so divided as to al- 
low them that form, while the Northern poulation 
might adopt a State Government if they preferred it." 
These are striking and most important developments, and 
demonstrate to every mind, that if these people South of 36° 
30 min. had been left to themselves, or could have had their own 
choice, they would not ahve been incorporated now into the 
State of California — but would have been severed therefrom, 
and been now decking at tKo K.x»»a= «rc"a«va»oo « 'T'.__.v^.,.,v,; 
Government. True, the delegates from that section after- 
wards submitted to their destiny, but what could they do 7 
They were overpowered. They had previously acquiesced in 
the lawfulness of the assemblage by being qualified as mem- 
bers thereof. Their retiring could not have destroyed the 
business quorum of the Convention, and would not have 
prevented their incorporation into the State. So their con- 
stituents, powerless to free themselves from the entangle- 
ment, submitted to their destiny with what grace they might. 
But the acquiescence of the people under such constraints, 
in submission to a political necessity — cannot divest this 
case of the overwhelming proofs it possesses, that these peo- 
ple were unanimously opposed to becoming part of the State 
of California,— of the imposing conclusion that their subse- 
quent acquiescence was constrained,— or of the inference, al- 
most irresistible, that the highest favor Congress could now 
bestow upon them, would be to sever the ties which bind 
them to Northern California. And what are the teachings 
of the Senate Chamber upon the California question, at the 
present day? Why, that the voice of the people there is 
potent, even over the Law. Well, judging of the popular 
numbers by the number of delegates allotted them in the 
Convention, the district of country South of 36'^ 30 min. 
must have contained at least one-third of the whole popula- 
tion represented in the Convention, and according to Preus' 
map ("prepared for the President of the United States, un- 
der the direction of the Commissioner of the General Land 
Office") the country so situate contained more than halfoi 
the whole State limits of California as her Convention has de- 
fined them, and containing about 90,000 square wi/es.' Here, 
then, in territorial dimensions, is viore than half of the 
■whole State of California, and containing an area 
larger, by six thousand square miles, than Vermont, New 
Hampshire, Massachusetts, Rhode Island, Connecticut, New 
York, New Jersey and Delaware combined, and containing 
within those limits fully one-third of California's whole pop- 
ulation, who are shown to have been unanimously averse to 
the formation of a State Government while a hope of defeat- 
ing that measure or of sundering the territory remained— 
and can it be possible, in the face of such demonstra- 
tions of popular sentiment, sustaining as they do all past 
usages and present national interests, that eminent Demo- 
crats from the Free States will lend their aid to stifle those 
sentiments, and irretrievably doom them to a connection 
forced upon them by the mere power of numbers of another 
section of California— possessinc territory without them 
sufficient for seven States— all of the gold region, and two 
of the most magnificent harbors in the world? Tell us. De- 
mocrats of the North, what interests of our great country 
are to be promoted— what objects of our noble party are to 
be subserved by disregarding its time-honored principles and 
all national usages, and forcing California into the Union as 
she is, in defiance of the remonstrai*ces of fifteen States, 
against th'e protest of the whole of your Southern Democrat- 
ic brethren united to a man in opposition to the measure, to 
say nothing of the great Whig party at the South, scarcely 
less unanimous, and equally indignant and resolved? I do 
not overrate consequences at all when I tell you, that in my 
most deliberate judgment, the National Democratic party, 
should that measure be carried through Congress by the aid 
of Northern and Western Democratic votes, will not and 
cannot survive its consummation ! 

2. California's want of revenue and claims to be 

SUPPOETED AS A StATB OUT OF THE NATIONAL EXCHE<»UBR. 



I. It had always struck me that the organization of Cali- 
fornia into a State was premiture, for the want of the meanc 
of supporting so costly a gbvernment. Where was the re 
venue to come from? What the sources of taxation' The 
lands in private hands in b^t small quantities, and the nub 
lie domain untaxable whileit remains such, and always -nado 
so, through compacts of th^ new States, for fiveycdrs theraf 
ter— and as to the public t/easure in the gold regions instead 
of relying on that as a sovkce of State revenue, it is' \ation 
al property— and every entrance upon the public lands fol- 
lowed by a taking ancU exportation of public treasure 
therefrom, is a trespass Aid violation of the rights of pro- 
perty; subjecting the tre/passer to damages and criminal pe- 
nalties for the conversioi, whether the lawsofthe U. States 
have been specially extended eo nomine to those Tei-ritoiies 
or not; unless indeed thi amazing absurdity {invented to ex- 
clude slavery from the cjdcd Territory,) can be maintained 
IhdiX the Mexican lawsjaTe still in force there, for then I 
must admit, that any ciizen has a right to appropriate to his 
own exclusive use (unfer a moderate per centage to the Go- 
vernment) whatever rine of treasure he discovers or finds 
abundant, and without "let or hindrance" from neighbor ci- 
tizen or the governmei so long as he chooses to occupy and 
work the same ! Sue! is and has been for a vast number of 
years the law of Mexio, as it is universally, I believe, of all 
the Spanish American itates; and if Mr. Clayton carries out 
his iTionstiniis doctrin^that theee laws are in force in Cali- 
fornia and New Mextp_^hat follows— wffat"'?an"roiiow 
—but that all these va^gpogitg gf ti,e precious metals will 
be irretrievably lost to tlLg whose prodigal outlays of blood 
and treasure have mad^jheni ours? If, however, such 
a pestilent and senseless )>-etension is to be repelled and 
chastised, and the right of Voperty of the United States, 
with all the accessories pertai,jng to ownersiiip is ti be as- 
serted and maintained in Califo^^ja and New Mexico, as the 
right of property exists and is rev,gnized in every otler part 
of the civilized world, then, as a^Q^en of the Souti, I de- 
mand of the Executive and of Congv^gs^ \n the South'sname, 
that the first and highest right of fSjperty (its securi y) be 
forthwith enforced in California, and \g,i the public treisure 
be protected from all depredations froiy all quarters; fo-, if 
the North is unwilling that the citizens \f the South sheuld 
share in the benefits of a joint acquisition, lyt prefers to slnre i 
them rather with foreigners and their peonsof every landa^d 
clime, I appeal to the Constitution for the authority and tie 
doctrine that the public treasure, wherever it be, belongs to tht 
public Treasury, and is inalienable and indisposable but 
by law; and that every surplus thereof, beyond the constitu- 
tional wants of the Government, belongs exclusively and re- 
spectively to the sovereign States of the Union, and not to 
ihe private citizens of favored portions of them. But this, 
though important, is digressive, and I return to what I was 
saying of the resources of the State government to support 
itself. 

Besides the want of a land tax, the right to tax or derive 
revenue from the public domain, there was a want of num- 
bers, and, consequently, of employment, &c., and locality and 
fixedness in the population, to make taxation available and 
adequate to the wants of the treasury; for though the Con- 
vention, in the 8th section of the schedule of the Constitu- 
tion, made great pretensions to a large population by directing 
fwo members of Congress to be elected, while the existing 
ratio of representation in Congress , 70,680 for each member, 
would have required a population of 141,360, yei the Con-rcn- 
tion itself, in another part of the same Constitution, (the 29th 
section of the 4th article,) betrayed its consciousness that it 
could have nothing like that number at the time that election 
was to take place, by providing that "the number of mem- 
bers of Assembly shall not be less than 24 nor more than 36, 
until the number of inhabitants within this State shall amount 
to 100,000"— (plainly referring to some distant day)— thus 
furnishing convincing proof that it had not reached that num 
ber yet, by directing, in the 14th section of the schedule, t'^at 
the members to be chosen at the same election which the two 
members of Congress were to be elected, should onlyiamount 
to 36! I by no means stand alone in my estimate of the 
taxable resources of Caliafornia. The leading nieniber of 
her Convention, a gentlemen long distinguished, and now 
honored with her highest Federal trust, (Dr. Wni. M. G%vin, 
one of her Senators elect,) on the floor of her Convention, 
made known her destitution in far more significant terins 
than I have, and rated her extremities as so exigent, 'h^' "^ 
gravely insisted that the United States Treasury should de- 
fray all her expenses for "a number of years" — thus makin? 
her a mendicant and stipendiary of the Federal Government, 
and unconstitutionally, but inevitably, her deprndant. tsut 
it is best that Dr. Gwin should speak for himself : 

"It was absolutely essential that the House should ascer- 
tain, how the means of supporting this government, ajterits 
adoption, is to be obtained. Other means must be provided 
to pay the exp4nses. than by taxing the people of California. 



tHE Government op the United States should bear 
^HE EXPENSES OF THE State Government for a number 
#F YEARS AFTER ITS ADOPTION. Fourteen of the thirty 
•^Uates of the Union— all the new States, except Texas — have 
^ad the benefit of territorial government. The expendi- 
;ure of public money in sustaining territorial governments 
lias been immense. There never was a territory except 
'.'lalifornia that had not large appropriations to sustain it," 
i,c. "Florida had the benefit of 24 years territorial govern- 
(nent, during which period she received $40,000,000; ( !) 
Mississippi had the benefit of 17 years; Alabama 19; Louisi- 
«na, &c., 9 years: Tennessee 6; Kentucky 10; Ohio 3; In- 
■liana 16; Illinois 18; Michigan 31; Missouri 18; Arkansas 
Ha; Iowa 8 and Wisconsin 12. The object of the resolution 
^3, to report upon these facts, and if the statistics can be ob- 
tained here, to ascertain how much has been paid out of the 
> ublic tre isury to sustain these territories, and to show that 
'■he Congress of the United States is bound to appropriate, out 
(f the ta.r collected here, siijficient to support this State Gor- 
^ trnnienl until other means can be obtained, without imposing 
•..'nerous burthens upon the people." 

Every thinking man must see at once, that such a condi- 
tion of dependency of a 5'/a/e upon the general government 
.3 an impossible relation under such a federation of sover- 
eignties as ours; ibr as the money power would inevitably 
draw the political power after it, it would involve cessions 

}j'L!fyTo''s"urr?ni%'?'filv?i6^{/TiGcJ'vi^'h^Fe^aa.b^,p.9.mtPS3: 

States, than the federal government has a capacity to re- 
ceive under the limitations of the Constitution. Senator 
Dayton will have to take back his laudations upon the Cali- 
fornia Convention, for its bountiful allowances to her State 
functionaries — of Sl0,000 per aniium [or her Governor — S32 
per diem, and S32 for every twenty miles travelled by her 
Lieutenant Governor, while in performance of his official du- 
ties — $16 per diem to each of her Senators and Represen- 
tatives, with $16 mileage, if'C. — if the co-States are to pay 
them; for of all professions of generosity those cost least 
and are felt least, where the means are defrayed from the 
pockets of others. But I did not cite Dr. Gwin's speech to 
rebuke opinions too palpably unconstitutional to command 
any support in either House of Congress, but to borrow the 
aid of a gentleman of distinction and merit, and who well 
knows the condition of California, to show that her revenue- 
wants are real and that, until she has the means within her- 
self, of supplying them, it is her right, as it is her duty, to 
draw her supplies from the National Treasury, and upon the 
only terms upon which the federal government has any con- 
stitutional authority to grant them — that she receives and 
submits to such a territorial form of government as Con- 
gress should provide for her. It seems amazing, that after 
he had shewn so fully what Congress had done for all the 
other new States, in providing them with and defraying their 
expenses so long as territorial governments — that California 
was entitled to an equal measure of protection and support, 
and stood in such actual need of it — that so obvious a conse- 
quence had not occurred to him, that a ^erritoria/ condition 
would be quite as indispensable to California to secure her 
that aid, as it had been to the very new States to which he 
referred as the beneficiaries of the federal government. 

3. One-third or the population and near half of the 
Territory of the State of California had already been 

INt ORPORATED INTO THE StATE OF DeSERET, AND SEVEN 
WOMTHS BKhUHE THJt; FORMER UECAMt; A SxATE. 

There is yet another matter bearing upon the admission of 
California of very obvious importance, but which has been 
kept steadily and mysteriously out of view: I allude to the 
application of the State of Deseret to Congress to be admit- 



form for them a State Government, can deny the yet higher 
sovereign right of the people to form that government them- 
selves, and for themselves; for no political party denies that 
all the rights and powers of sovereignty, being inherent in 
the people, necessarily abide there, until and to the extent 
and for the time they are parted with to those who represent 
them. It is true, the people ot Deseret had no such advan- 
tage — if advantage it was— of having a Federal Military 
Governor (under'the promptings of the Federal Executive) 
to issue his proclamation, de.signating electoral districts, as- 
signing their limits, fixing the number of the delegates to 
the convention, apportioning them among the districts, fixing 
the qualifications for voters, &c.; but, after all, she presents 
herself under the prestige of advantages which California 
does not possess, of which these may be noticed : — 1st. 
Deseret has a right to precedence in the consideration of her 
claim to be admitted, because she preceded California seven 
months in the formation of a State Constitution; the one 
being adopted March 9th, and the other October 12th, 1849. 
2d. It is conceded that at the time these constitutions were 
severally made, Deseret had a far \nrgerjixed resident popu- 
lation than California; and it is believed that such is the ca^e 
even nmc, though the difference would be far the other way. 
if the floating transient sojourners in California, Americans 
and foreigners, could be fairly brought into the account as a 
basis of representative numbers; but for any other purpose 
than to save appearances and to swell the roll of required 
jjuimiauua, uiieinigru as wen <:uani me passing soldiers of 

travelling regiments, who are there to-day, and have vanish- 
ed to-niorrow. 3d. The people of Deseret allowed larger rights 
of suffrage— excluded no one— all shared in framing the con- 
stitution, and, when it was completed, all voted for it. 4th. 
Deseret does not lack the means of supporting a State Go- 
vernment, as Dr. Gwin thinks California does; and she 
so makes known in her memorial to Congress asking admis- 
sion as a State, which declares, 

"And whereas, there is now a sufficient number of indivi- 
duals residing within the State of Deseret to support a State 
government, thereby relieving the General Government from 
the expense of a territorial government in that section, and in 
evidence of which the inhabitants have already erected a legis- 
lative hall, equal to most and surpassed by few in the oldest 
States, your memorialists, therefore, ask your honorable 
body to favorably consider their interests, and, if consistent 
with the Constitution and usages of the Federal Govern- 
ment, that the Constitution accompanying this memorial be 
ratified, and that the State of Deseret be admitted into the 
Union on an equal footing with the other States," (^c. 

5th. But Deseret possesses a far weightier advantage over 
California than any of these, in the conflict of boundaries 
between the two, and wholly and wantonly the fault of the 
California Convention, hat is, if CaHfornia is chargeable 
with knowledge of the :act that Deseret had formed her 
Constitution and assume 1 her limits after the lapse of seven 
months from the date thereof. But whether she knew it or 
not, cannot alter the riglts resulting from prior appropria- 
tions of Territory, if theig be any such right in either to ap- 
propriate to their own Arbitrary uses the public domain of 
the several States withoul the prior sanction of Congress. — 
Passing this by, I remark\that the Convention of Deseret in 
pursued the natural boundary 
a and at the line of 36 30 runs 
Santa Barbara on the Pacific at 
latitude, thence South-Easterly 
along the meanderings of the ocean to the Mexican border, 
thence East with that boundary line, &c., &c., consequently 
fronting on the Pacific two degrees of latitude from the 
34th to the 32d. Her dimensions, like those of California, 



fixing her Western limii 
South of the Sierra Neva 
nearly a due line South t^ 
the 34th degree of North 



ted into the Union as one of these States; and though less are monstrous, I admit, and such as Congress ought never to 



bold and pushing than California, she modestly awaits the 
sanction of Congress of her Constitution, before choosing 
and sending hither her Senators and Representative to Con- 
gress. I know not that her claims are at all the worse for that. 
Neither are her claims the less, in my judgment, that she 
dispensed with a representative, and, in imitation of many of 
the master States of Greece, when in their most prosperous 
condition, adopted the system of a pure Democracy, and ac- 
ted through a popular Convention. Upon more than a 
month's notice the whole people of the Territory were as- 
sembled at the Great Salt Lake City, March 5, 1849— organ- 
ized themselves into one general Convention, irrespec- 
tive of parties, and, after arduous and solemn delibe- 
rations of four days' continuance, produced a Consti- 
tution of .such lucid simplicity and real excellence, 
that not an objection was raised against it, and it was adopt- 
ed unatUmously. and received every where through the terri- 
tory the public approval. What higher proofs than these of 
ine sovereign will of the people could the extremes! stickler 
lor the right or self-government desire? None who admit 
mat the people might have exercised in this instance the so- 
>erejgn right to choose representatives to a convention to 



assent to ; but after she had formed a State Constitution, 
whatever territory she embraced in her State limits could 
not be intruded upon or taken from her by any authority 
less or other than that of Congress. Her title was good and 
perfect against all other claims but those of the United States. 
Until the action of Congress took place, no other Territorial 
Government could be formed within her limits. Still less could 
any other territory, without the previous sanction of Con- 
gress, seize upon and appropriate to her own limits a vast por- 
tion of the very territory already incorporated into the State of 
Deseret. Once admit the doctrine, that any considerable num- 
ber of people have the right, without the previous sanction of 
Congress, to assemble in Convention upon the national ter- 
ritory, form their own Constitution and State government 
and fix upon their own boundaries, (as is now contended fop 
in the case of California,) and it is impossible to resist the 
conclusion that the State of Deseret had an absolute immu- 
nity of limits against the aggressive legislation of California. 
B ;fore either moved towards a State organization, they pos- 
sessed equal rights, if any rights, to fix upon their own boun- 
daries — but those equal rights were converted into better 
rights, and excluaiv* rights, in favor of the territory first 9B: 



tering ni^m a Slate organizalion. Now let us si^e what liap- 
pnned. California, possessing icithin tJie limits wkich the Slate 
of Dcscrethad left her, (being the whoie territory between the 
Sierra Nevada and the ocean) no less than 90,000 square 
Diiles, after running down the tJierra Nevada from the 42d to 
33 deg. 30 min. of North latitude, for some unac- 
countable reason, crosses the niountaia over into De- 
seret and runs a South-easterly line for 400 miles 
through the heart of her territory, and without the 
show of a single natural boundary until the line reaches 
the Rio Colorado ! thence down that river to the Mexi- 
can border— running with that boundary line to the 
eea, and^actually embracing slxly-fwe thousand square miles 
of the State of Deseret! But even this is not the most sin- 
gular and inexplicable feature of this extraordinary affair; for 
General Riley, through his proclamation, actually summoned 
the people of Santa Barbara, Pvcbla de los Amrelos and San 
Diego to choose delegates to the Ca/i/brn (Vr Convention, 
though those Districts and their inhabitants, together with 
those of Santa Bucnrentura and San Gabriel, had, every one 
of them, been incoijjorated into, months before, and became 
and were, until Congress disapproved, citizens of the State 
of Deseret! Thus, under promptings from Washington and 
through the proclamation of a federal executive officer, were 
the rights of the State of Deseret wholly disregarded, four- 
teen of her citizens, {conslitidins: nearly one-third of the whole 
Convention,) chosen by the people of those Districts and in- 
veigled into the Califotlaia uohYcnTion to assrsi m irrcn^r- 
mation of a State government to which they and the people 
they represented were unanimously opposed! Vs'as there 
ever such a state of things before '.' Here are two 
new States claiming admission into the Union with boun- 
dary lines crossing each other, and embracing xcithin the 
limits of each 65,000 square miles oj' the same identical terri- 
tory, — larger in area than 7 or 8 of the Atlantic States, anp 
which either could dispense with, and have territory remain- 
ing to each, sufScient in area for tiio formation of 7 or 8 
more States out of each. Here are all the large districts ly- 
ing South of 36° 30 min., and fronting on the Pacific, claim- 
ed by both of these new States as situate within their re- 
spective limits — while the people who inhabit them are iman- 
imously averse to the formation of a State Government with 
either. If Congress in these turbulent times was what the 
Constitution designed it should at all times be, — a deliberative 
body, — could any one have fore-ti;ought that it would have 
taken an hour's thinking to deciJej that neither of these 
States were admissible with their present conflicting and 
monster dimensions? As to California, the thing would be 
absolutely impossible, because all her boundary lines in con- 
fact witii those of Deseret were nuil and void a& wj/io, under 
the prior, and therefore, better and exclusive right of the 
(S/iaie of Deseret. Until Deseret's light to those boundaries 
had been disposed of by Congress, rot the shadow of a right 
could originate in California to clain them. While Deseret's 
constitution awaited the action o.' Congress, no portion 
of her territory had a right to representation or could 
have been /ee-aZZy riipresented in the California Convention. 
These 14 members could have hac no right to scats or to 
votes, and if the matter had lothing to do with tlie 
• anti-slavery excitement,! iihovMnv^nVAm with great confi- 
dence, that their sitting there anc voting there vitiated the 
whole California Constitution, for vho could say how many 
important features may not have b^en introduced into or ex- 
cluded fromthat Constitution, throigh the casting, from time 
to time, of those 14 votes'.' Who ci'uld say, thaf the Consti- 
tution, as it now is, is just what it v/ould have been, ha"d no 
one participated in its framing and adoption but those who 
had a legitimate right to do so 7 1 kive the authority of Mr. 
Senator Dayton, one oi the soundelt lawyers in thu'Senate, 
for the position, that California, tbi|ough her own unautho- 
rized organization, became and is aState dc facto, and as no 
force of ingenuity can discriminate between her and Deseret 
to the disparagement of the latter, the passage I here quote 
from his speech, applies with equal f .rce and pertinency to the 
institutional conditions of both. He says : 

"Caliiornia, sir, is a State— -.i State de facto. It exercises 
the powers of an organized Govcrament. Whether it is or 
shall be a State dejure, depends upon the action of this Gov- 
ernment. She lias within herself all tlie })Owers, all the rigJUs, 
and is charged with all the ubUgations of a State. * * * She 
has adopted the character of Government which was in her 
power, upon principles of Natiomd Law. She could not 
adopt a territorial form of Government — that is the creature 
of federal legislation. She has icithin herself now all the elc- 
vients, rights and pouers of a State." 

To close this tnatter, I will put a case for the judgment of 
every conscientious man in Congress. Huppoae seven 7nonths 
after Iowa had formed her State Constitution, and before she 
had applied for admission into the Union, that the people of 
the coterminous territory of Minnesota had taken it into 
their heads to become a State, had assembled in Convention, 



formed a State Constitution, and stretched South her boun- 
dary line so as to embrace some 20,000 of the 50,000 square 
miles of the State of Iowa, and suppose that both of these 
new States were applying for admission at the ensuintr ses- 
sion of Congress, Minnesota having chosen her Senators 
and Representatives to Congresss, and Iowa not: is there 
one member of either House, who, under such circum- 
stances, and apart from all anti-slavery issues, can 
lay his hand upon his heart and say, that as both could not 
be admitted with their condicting boundary lines, and as they 
were, he would have favored and insisted upon the admission 
of tiie State of Minnesota, embracing tivo-ff I hs of the Ttrri- 
tory of Joica, and given Iowa the go-by '.' There is no mem- 
ber who will say so, and not one who prizes national justice 
at its proper worth, with the dignity to resent unfounded 
imputation, who would not be offended at the supposal. — 
What then? Mutando nomine de illo fabula narratur. — 
Change but the name — substitute California for Minnesota, 
Deseret for Iowa, and you have the very case now under dr;- 

bate, WITH THE PREGNANT E.XCEPTIONS, THAT CALIFORNIA 
EXCLUDES SLAVERY FROM HER BORDERS AND DesERET DOES 
NOT AND THAT CaLIFORNI.\ DEBARS THE SoUTII FROM MI- 
GRATION AND SETTLEMENT IN 65,000 SQUARE MILES OF THE 
actual LIMITS OF THE StATE OF DeSERET ITSELF, WHICH 

THE Constitution of the latter left untrammelled and 
FREE from all RESTRICTIONS ! How is it possiblc to acc^unt 
in any other way for the absolute furor which rages in the 

xxaii:rtri -^c^virciic'cTO ivi irliT aTjnuwolVjii yji \ja1\t\H ill^ JUSl aS 

she is, in face and_ defiance of the knowledge possessed by 
every member of Congress, (through the printed proceedings 
of the Convention, embracing her excellent Constitution, 
with the proceedings of the Legislature of the State of De- 
seret thereon,) that nearly one half of her incorporated limits 
had been spoliated from the limits appropriated by Deseret to 
her exclusive use seven months before, when she became a 
Slate de facto, and which became and were immutable and 
inviolable, but under the authority of Congress? I will 
only add, that if the territory South of 36 deg. 30 min. 
shall remain incorporated in the State of California, in face 
of these obstacles I have presented, it will be an instance of 
the might and despotism of numbers over popular and so- 
vereign rights and interests, without a parallel in the legis- 
lative annals of the country. Look at it. From all pass- 
ing developements the corollaries are — 1st. That the people 
of Deseret are unanimously opposed to it, because it em- 
braces a vast area of the territory of their own State. 2d. 
That the people residing South of that line are unanimously 
opposed to it, as manifested by the unanimous resistance of 
their delegates (under instructions) to the California Con- 
vention to the formation of a State Government. 3d. That 
fifteen of the thirty sovereign States of the Union are ^tna- 
nimously opposed to it, as hostile to their interests, in viola- 
tion of their rights, and as an insurmountable impediment in 
the way of an honorable compromise. 

4. Should California be admitted into the Union now, and 
before making a formal renunciation through a Conventional 
Ordinance of all title or claim to thepiiblic domain, and the 
gold region ^cilhinher linvits, whatu'oidd be its ejfectupon the 
title of the United Slates thereto? 

The objections already adduced in this paper to the ad- 
mission of California are weighty, and I think insuperable; 
but it may be that the free Slates will regard the present one 
as the weightiest and most important nf them all; and should 
they concur with me in tiie conclusions of law i deduce 
from the measure, I am sure they "'ill. 

The ri^ht of the United States to the public domain within 
a territory is undoubted and complete, and so is their right 
to disposeof it; but if, without disposing of it, they authorize 
the territory to become a State and to enter the Union, wiiat 
becomes of the r\'j\n then? 'J'hat's a grave question, but, 
tested by the Constitution, and I tliink it is free from all 
doubt. 'When that test is applied, it will turn out to be a 
right by suferance, and nothing more. And how is this pre- 
carious right to be preserved? By a forestalling renuncia- 
tion of title by the new State throu^'h a conventional o:iii- 
nance prior to entrance into the Union, and not othencise, 
leaving her without temptation to meddle with \vhat she 
cannot appropriate to herself. All this must be so, if the se- 
veral States in the Union are the co-c^jm/s of one anotlier, botii 
in the rights and powers parted with to the Federal Govern- 
ment, and in the rights and powers reserved. In theory, i^o man 
of any party denies this— though, when the men of the North 
shall have appropriated the wHiole of the new territories to 
their exclusive use, their practice will be amazingly in con- 
flict with it. Nevertheless, il\e principle of equality is cer- 
tain and necessarily immutable while Mis Union lasts; loi 
there is but one common measure of every State s ces 
sion of powers and sovereignty, and this is the Constitution 
No power exists there which each and all the States liavi 
not surrendered, and no proofs exist there that any one ot 
them surrendered more than any other, and, consequenu>, 



of 



that all the cessions of the States which tliat instrument 
contains — lil-ce the restraints it imposes and tlie benefits it 
secures — areand must be scrupulously equal. Jn this Union 
the States are a Federation of equals, and nothing else. 
Whatever of power Massachusetts has ceded or reserved on 
entering into the Union, that has Louisiana done, neither 
more nor less, nor otherwise; and any attempt by tliis gov- 
ernment to vary the cessions or reservations of either, would 
be unconstitutional and void. All this results not so much 
from the want of a power in the State to make the cessions — 
for sovereign States could part with what they pleased — but 
the leant of capacity in this Government to receive any more 
power than the Constitution had prescribed and provided for. 
A State Convention might, if it would, profl'er to Congress 
a power to lay export duties uponcotton, or a power to the 
President of the United States to appoint her Senators to 
Congress, &c., but these powers would lapse and revert to 
the State for the want of capacity in the grantees to receive 
and execute the trust. So if a State Convention were to 
proffer to this government a right and a power to acquire and 
hold lands within her limits, upon terms and for purposes dif- 
ferent from those maintained and prescribed in the Constitu- 
tion, the like want of capacities would defeat the grant. This 
brings us a step nearer to the point where the principle as- 
serted may be applied to the facts. 
No one has read the constitution undersfandingly and in- 

fenced around by special provisions, apart and besides its 
general tenor and the obvious nature and purposes of such 
a Union as ours. Such are the apportionment of capitation 
and direct ta.\cs to Federal numbers, the exemptions of ex- 
ports from duty, the withholding of preferences of the ports 
of one Slate over those of another, the dispensing with 
clearances and duties in the coasting trade between the 
States, the privileges conferred upon every class of citizens, 
in each State, to enjoy all the privileges which the same 
classes of citizens enjoy in any of the other States where 
such privileges may be claimed, making "all duties, imposts 
and excises uniform throughout the United States," &c., &c 
Instances, quite as marked, are to be found in the same in-, 
strument of the salutary dread of the encroachments of the 
Federal upon State power; and the memorable and invaluable 
tenth "amendment" vvas the goodly offspring of that senti- 
ment; but the extremest of all the State jealousies seems to 
have been displayed in debarring the Federal Government 
from afoot-hold within the limits of the States, through that 
remarkable reservation, that even under the sternest public 
necessities the soil of a State could not be appropriated to 
Federal uses, unless and until its solemn assent had been 
given under all the forms of legislative cession. If to-mor- 
row it were determined in Congress to be of urgent impor- 
tance that the United States seat of Government should be 
removed to a district "not exceeding ten miles square" with- 
in the borders of the State of Oliio — if Congress should 
unanimously, in both Houses, vote for the measure, and be 
sustained therein by 29 out of the 30 States of the Union, 
the measure must fail, without, and until the State of Ohio 
througli its Legislature had assented tiiereto. If Congress 
with like unanimity, and a like support from the States, prof- 
fered to purchase a site for a fort witiiin the curtilage of Vir- 
ginia, and in a season of peace, irhen. no miidary necessity 
under the war power teas imminent and overwhelming, it 
'■ould not be d^ne without, and until the Legislature of Vir- 
ginia had eiven, its formal assent thereto. I must be right in 
this, unless 1 have grossly misconstrued the meaning of the 
17th clause of the 8th section of the 1st article of the con- 
stitution. That clause confers the power on ConKress 

"To exercise exclusive legislation in all cases whatsoever, 
over such District (not exceeding ten miles square) as may, 
iy cession of particular Slates and the aceeptanre of Con- 
gress, become the seat of Government of the United States, 
and to exercise like authority over all places purchased by 
the consent of the Legislature of the State in which the same 
shall be. for the creation of forts, magazines, arsenals, dock- 
yards and otiier needful buildings." 

It may be said, I know, that "the consent of the Legisla- 
ture of a State" is only needed where jurisdiction and the 
right of "exclusive legislatioji" is wanted and conferred, and 
that where the government wants the land without the ju- 
risdiction and the right of legislation, it can acquire and hold 
lands in a State for any other purpose. Now, in reply, I de- 
mand to know, what other constitutional purpose there can 
be beyond those enumerated in the above clause, for this go- 
vernment to acquire and hold lands within the limits of a 
State ) For my part, I can see none, and, what is more to 
the purpuse, the Convention saw none, or it doubtless would 
have included them in the foregoing enumeraCwn. That 
enumeration constitutionally excludes all non-enumerat- 
ed objects for the holding of such lands; and this view 
•of the matter gathers strong confirmation from the cir- 



cumstance, that there could be no conceivable object 
for which this government could acquire and hold lands 
in a State, which would not draw after it a polit- 
ical necessity quite as cogent as could exist in the matter of 
forts, &c., for investing this Government, at the same time, 
with an exclusive right of sovereignty, jurisdiction and le- 
gislation over it. Property so acquired and holden by this 
government, without the legislative assent of a State, either 
carries exclusive jurisdiction and legislation along with it, 
or it does not. If it does, the clause conferring that juris- 
diction and legislation, in the enumerated cases, is the merest 
surplusage and amounts to nothing— and the enumeration 
itself is without force and without sense. If it does not, 
that jurisdiction and legislation remains with the State 
where the property is situate, and subjects the lands, like the 
lands of individuals, to the taxable levies and contributions 
of the State. Take either conjuncture, and it leads to ab- 
surdities equally perilous and monstrous; for, according to 
this, this government either possesses the unlimited power 
without a Constitutional purpose, to purchase and withdraw 
from State taxation any quantity of the lands within the 
limits of the State — or it invests the State with a 
power ad libitum, to tax and to seize and sell for 
taxes the public property of the Union. Can a mo- 
tive be ascribed to tlie sages of the Convention for es- 
tablishing relations between the State and Federal Govern- 
ments, so anomalous, antagonistic and disturbing? Would 
uie oOnvex.,,jo.. ..>..' ,...,°^ xv..viaa... u.k, s-^mmPnt to 
acquire and hold lands withm a Slate, without its consent 
even for the important and necessary objects of "ibrts, maga- 
zines, arsenals, dock-yards and other needful buildings!" have 
designedly left it to be implied that it cotdd acquire them 
there for all other objects, without and against a State's con- 
sent, and, after acquiring them in this irregular way, convert 
them, it might be, to the very uses which the Constitution 
had provided for, through a diiTerent mode of acquisition?— 
Are there any conceivable circumstances under which the 
Convention could luivej foreseen and designed that the Fede- 
ral sliould become sul^iordinate to the State authority, by sub- 
jecting any landed property of this Government, within a 
State, recognised as {''^deral property by the Constitution, to 
the political action an4 fiscal burthens of State legislation ?— 
The chary wisdom of the Convention, in all other ihines, for- 
bids us to think so. Yet see how Congress has beeiTnego- i 
tialingand trafficking vjdth the new States touching the public ; 
domain within their several borders, for a half century past ' 
commencing with Ohio! in 1802 and ending with Wisconsin 
in 1847, making large cessions of territory with a per centao-e 
upon the public sales to each— to buy off their rights of tax- 
ation, aye of eminent domain, upon the public lands within 
their borders, through tonventional compacts of relinquish- 
ment with this goveriment of the sovereign rights of both 
title and taxation. It s clear past cavil, that if the Federal 
Government had a rigit under the constitution to hold lands 
within a State for ot|ler purposes than those enumerated 



therein, that right cou 
territory in which they 
j infer that their exemjit 
I sound a deduction fio:i 
be greater then, if this 
year after year ior fifty 
the new States to relin 
eminent domain and ta> 
and never could pos 
right upon this Govern 



d not be affected in any way by the 
were situate becoming a State, and I 
on from State taxation would be as 
the satne right; what absurdity could 
were so—\.\\o.x\ for the United States, 
'ears, to make solemn compacts with 
luish in favor of the former rights of 
ationvvhicli the latter never possessed 
ss, if the constitution conferred the 
nent to hold ttiem in a State. As wo 
cannot suppose that jo many Congresses, and for such a 
length of time, would hkve sanctionedjand exacted such com- 
pacts with the States.l if they regarded them, when made, 
as mere nullities, and constitutionally absurd, we are 
constrained to suppose that they regarded them as accom- 
plishing real objects aind avertinic most important conse- 
quences. If they did sb, there is no alternative hypothesis 
to account for why \\\e\ did so, but simply and only, that in 
the opinion of all thesejCongresses, the conversion of a Fed- 
eral Territory into a (Sovereign State would, in the ab- 
sence of a compact of relinquishment, invest the State with 
a right to the public domain within her borders —noi de jure 
—not at all— but from the want of a Constitutional riglit in 
this Government to hold them longer; and as the Federal 
Government, in withdrawing her sovereignty to make room 
for the sovereignty of tile State, withdrew her Jitle to tho 
public domain wiiich was part of it, the Federfl title laps- 
ing, the lands would naiturally escheat to the Commonwealth 
Ola State for the want of an owner. That Congress has 
been right in the doctriiie it has manifested for fifty years, 
that State sovereignty ex vi termini removes and ex- 
cludes from the public domain Federal sovereignty and 
title too, I have not the shadow of a doubt, and I shall 
be deceived and amazed if the Judiciary shall not 
confirm that doctrine, be it tested when it may. That the 
compacts made with the nev/ States have hitherto averted 



y 

evil and worked well, is not to be denied as matter of fact; 
how it would be as matter of laic, if brought to that test, is 
another question. The safest course of all is, never to admit 
a State into the Union, until all the public doniain of 
value has been disposed of. Where, however, high pub- 
lic interests urge her admission before this has been done, 
the ne.vt best thing wliich this government can do is, to draw 
her into a conipiot of relinquishment; for though a State's 
leave be ineffectual to confer a poirer on this government to 
hold land within her limits, if tiie Constitution forbids it. 
yet the State's abandonment of title removes all temptation 
to destroy or to molest that right of sufferance, of which I 
have spoken. 

In what I have said, I have had mainly in view the origin- 
al thirteen States; for the Convention must have mainly 
looked to their existing and future condition to guide them 
in the partitions of sovereignty it was engaged upon. The 
Federal Government at that time, e.xisting but in posse, was 
of course without a foot of soil within the borders of either 
of the States, for any purpose. The Convention, upon full 
deliberation, after estimating all the necessities there were, 
or might be, for the Federal Government's iiolding lands 
within the limits of a State, concluded that "forts, maga- 
zines, arsenals. Hock-yards and other needful buildings" 
would embrace every object needed and provided for them; yet, 
so extremely jealous were the States of the presence and abid- 
ing of federal troops and ships of war, &c., wii hin their bor- 
ders, that thay ^-^uld n^t B- — ' ♦'--. ^-.•'•■' ^■'' "j"' .""u""u 

specially reserving to themselves tne right of judging both 
of the necessity of their establishments and of their localiza- 
tion within their borders. How would the convention have 
received a proposition at that day, to have vested in the Fe- 
deral Government an unlimited pou-er to purchase up and to 
hold in perpetuity large bodies of lands within the limits of 
the States, with power to exercise all the subordinate rights 
of ownership, to lease them, settle them from other States, 
or from abroad, rear up and spread out a Federal tenantry 
over the land, until the whole policy and destiny of the 
States were controlled and directed by Federal authority, and 
the powers of the States sunk, one by one, under the process 
of absorption and centralization? What would the Southern 
States at that day have thought of a proposition involving a 
power in Congress to acquire and hold large tracts of 
lands within their borders, and a power in the Exe- 
cutive to colonize those lands witli free ne-groes, and 
in immediate contact with the slaves; and especially, if 
ken of theirs could have reached unto this sad epoch in our 
history, when a prominent aspirant for that Presidency de- 
clares in open Senate, in the face of man and of Heaven, 
that he would trample the Constitution under foot and per- 
jure his own soul to rob the South of her property in slaves ! 
What would the Convention have thought of such a case as 
the admission of California into the Union before an acre of 
her domain had been sold or surveyed to supply her inhabi- 
tants with domicils of their own, and under a construction 
of the Costitution by which 49-50ths of her whole territory 
(bating the fraudulent Mexican grants) is in the hands of the 
Federal Government, and there to rermin in perpetuam if the 
Government chooses, with a power tc colonize there a Fe- 
deral tenantry who could manage ard control its political 
action and destinies without check and for all time ? 

I wassliglitlv inaccurate in saying that Congress exacted 
compacts of relinquishment from all the New States. I find, 
however, that Ohio, Indiana, Illinois, Michigan, Wisconsin 
and Arkansas were not required to ma'ce such compacts. Of 
the latter State, I will speak herealtiT; of the five former, lob- 
serve that they were all formed out of the Territory North 
West of the Ohio, and Congress deeming the ordinance of 
1787 as applying to them after they became States and all their 
Constitutions making special references to that instrument, 
all further ordinances were rcuarded as needless and supere- 
rcatory. The ordinanje of 1787 declared that, 

"The following articles shall be considered as articles of 
compact between the original States and the people and 
States in the said Territory, and forever remain unalterable 
unless by common consent." 

The fourth article of that ordinance or compact provided, 
among other things, that, 

"The Legislatures of those districts or new States, shall 
never inter ftre with the primary disposal of the soil by the 
United Sl'att's in Congress assembled, nor witii any regula- 
tions Congress may find necessary fur securing the title in 
such soil to the bonafde purchasers. No tax shall be impos- 
ed on land the property of the United States, andin no case 
shall non-resident proprUtors be taxed higher than residents. 
The navigable waters leading into the Mississippi and St. 
Lawrence" and the carrying places between the same, shall 
be common highways and forever free, as well to the inhab- 
itants of the said territory, as to the citizens of the United 
States and those of any other State that may be admitted 



into the confederacy, without any tax, duty or impost there- 
for." 

That ordinance per se was quite as effective as any new com- 
pact of relinquishment could have made it, and coupled with 
the power which Congrpss possessed to withhold its assent to 
the admission of a State, until the public doniain within its 
limits were disposed of, left the means of security of that 
doniain complete. Hut the treaty of 1803 brought a large 
additional territory into the Union, to which the ordinance 
of 1787 did not apply; and hence, when Louisiana applied to 
be admitted, in 1811, objections were raised that a vast por- 
j tion of the public domain within her limits remained unsold, 
I and that if she was admitted until it was dis|)osed of, it was 
I more than doubtful if the U. States could hold it longer. To 
meet the wishes of tiie people of Louisiana, and, at the same 
[ time, save the rights of the United States within her 
borders, the expedient was devised of exacting a cojn- 
! pact of relinquishment, both of title to the lands and of 
; a riaht to tax them while they remained unsold, and ac- 
I cordingly the act of Congress of Feb. 20, 1811, authorizing 
the people of that territory to form a Constitution and 
I State Government, exacted as a precedent condition, and 
' before the Slate of Louisiana should be admitted into 
! the Union, that her Convention should provide by ^^an Ordi- 
i nance irrevocable without the consent of the United States," not 
! to interfere with the primary disposal of the lands of the 
1 United States, nor to tax them until the same ^had been 
conditions, executed the ordinance or compact of relinquish- 
I ment, and then the State of Louisiana was admitted into 
i the Union. Similar ordinances or compacts of relinquish- 
ment were exacted of Mississippi by the act of Congress of 
i March 1, 1817, authorizing her to form a Constitution and 
State Government; of Alabama by the act of Congress of 
March 2, 1819, and of Missouri by the act of Congress of 
March 6, 1820, for similar purposes. All these ordinances 
were executed by the several <SVa/e Conventions before any 
one of these States were admitted into the Union. For the 
benefit of those who may not have access to the books, and 
may be curious to see the terms used in the acts of Congress 
exacting these ordinances, and as the provisions of all the 
acts touching the relinquishments to be made, are alike, I 
shall here quote from the act of Congress entitled 

"An act to enable the people of the Alabama Territory to 
form a Constitution and State Government, and for the ad- 
mission of such State into the Union, on an equal footing 
with the original Slates." 

The 6th section of the act provides, "That the following 
propositions be and the same are hereby offered to the Con- 
vention of the said territory of Alabama, when formed, for 
their free acceptance or rejection, which, if accepted by the 
Convention, shall be obligatory upon the United States." 

The 1st clause of the section grants to the State the 16th 
section of every township for the use of schools. The 2d 
clause grants to the State the Salt Springs therein, with 36 
sections of land contiguous thereto. The 3d. clause grants to 
the State 5 percent, of the nett proceeds of the sales of the 
lands within the territory, "for making public roads, canals 
and improving the navigation of rivers, of which three-fifths 
shall be applied to those objects within the said State by 
her Legislature and two-fifths to the making of a road or 
roads leading to the said State, under the direction of Con- 
gress." The 4th clause grants to the State 36 sections of 
land for the use of an University. &c.. nf the close whereof is 
to be found the important requisition for a conventional or- 
dinance, and is thus expressed : 

'•Provided, always, that the said convention shall provide by 
an Ordinance, irrevocable without the consent of the United 
States, that Ihe people inhabiting the said territory do ai>ree 
and declare that they forever disclaim all ri^ht and title to the 
waste and unappropriated la/ids lying within the said terri- 
tory; and that the same shall be and remain at the sole, 
and entire disposition of the United States; and, niorever, 
that each and every tract of land sold by the United States, 
after September l,'l819, shall be and remain exempt irom any 
tax laid by the order or under the authority of the State, 
whether for State, county, township, parish, or any other 
purpose whatever, for the term of five years from and after 
the respective days of the sales thereof; and that the lands 
belonging to citizens of the U. States, shall never be taxed 
higher than the lands belonging to persons residing therein; 
and that ?») tax shall be impoeed on lands, the property of 
the United States; and that all navigable waters within the 
said State shall forever remain public hishways, free to the 
citizens of said State and of the United States, without any 
tax, duty, impost, or toll therefor, imposed by the said 
State." 

The ordinance itself which the Alabama Convention exe- 
cuted is not now before me, but I commend it for additional 
light to every one's perusal. It is to be found in either ot 
Toulmin's oV Aikin's editions of the laws of Alabama. ~-'- 



Nei- 



ther have I a present access to the several journals of the 
four Consfpsses which admitted into the Union the States 
of Louisiana, Mississippi, Alabama and Missouri, but 1 
learn from a gentleman who was deeply interested in the ad- 
mission of several of them, and who was present as a Sena- 
tor and voted for the addmission of Missouri, that there were 
no dissenting opinions as to the necessity, or at least of the risk 
of admitting a new State without exacting from her prior to 
her admission, "an ordinance irrevocable without the con- 
sent of the United States," providing, as in the case of Alaba- 
ma, that her people should "forever disclaim all right and 
title to the iraste and unappropriated lands, if'c, and that 
the same shall be and remain at the sole and entire disposi- 
tion of the United States, if-c, and that no tax shall be imposed 
on lands the property of the United States." 

What possible reasons can be assigned why the present 
Congress should not imitate this wary wisdom of their pre- 
decessors in taking these timely and saving precautions be- 
fore admitting California into the Union 7 Four Senates 
and four Houses of Representatives usually contain a large 
and high average of the talents and attainments of the legal 
profession, with here and there constitutional lawyers and 
juris-consults of the first order of abilities; and when such 
enlightened bodies of men, having quite as much interest and 
purpose as we can have of protecting the title and immuni- 
ties of the public domain, where State sovereignty stretches 
over it, are unaninious in their views of thenecessity tiiere 
to both title and immunities without it, even though we 
should dissent from their conclusions, is it wise, is it safe, to 
disregai d their precautions, unless there be public {yiot pri- 
vate) reasons for admitting California noic, of such force and 
urgency that all safeguards must yield to them ? Quite ap- 
posite to the point and significant of consequences is the cir- 
cumstance, that some 20 years ago a Senator in Congress 
from Alabama made a speech in his place which attracted 
a large share of public notice and in which he main- 
tained, not only that this Government could not hold lands 
within the body of a State, without a compact of relinquish- 
ment, but icith it, and that even the comprehensive provisions 
of the ordinance, exacted from Alabama, formed no barrier to 
a claim resulting as an incident and existing as a muniment 
of sovereignty and eminent domain! The gentleman re- 
ferred to is the Hon. John McKinley, now an Associate Jus- 
tice of the Supreme Court of the United Slates! Has he 
changed the opinions which, at mature age and under solemn 
responsibilities, he announced in the Senate 20 years ago? 
Credat Judceus Appella! About the same epoch, I well re- 
member to have received ^om Governor Ninian Edwards of 
Illinois, and under his autograph, his printed message to the 
Legislature of that State, maintaining the same doctrine 
with Mr. Senator McKinley, and at far greater length, and 
with no less ability. 

But the California Convention itself was fully aware of the 
necessity there was for executing such an ordinance as had 
been required of Alabama, and previous to her admission intf 
the Union, for no fatuity could have so blinded it that it did 
not see, that no such requisttion could have been made upon 
it afterwards, and when California had been recognized as a 
State and taken her place in the Union. I can infer nothing 
short of a knowledge of what was needed from the 9th ar- 
ticle of her Constitution, over the title o[ "Education," pro- 
viding (Sect. 2) that the proceeds of all lands "that may be 
fcranted by the United States to this State for the support of 
common schools, which may be sold or disposed of," &c., &c., 
and that (Sect. 4) "The Legislature shall take measures for 
the protection, improvement or other disposition of such 
lands as have been, or may hereafter be reserved or granted 
by the United States to this State for the use of a University," 
&c: Thus anticipating those very grants from Congress 
which the Convention must have known are never made 
but upon the fulfillment of the precedent condition of exe- 
cuting an ordinance relinquishing all title to the balance of the 
public lands, &c. Just such a clause (not in language i 
but import) is so found in the Alabama Constitution, which 
accompanied the ordinance which her Convention had made 
when both were submitted to Congress, with a view to the ' 
State's admission into the Union, providing (under the 6th 
Article, title, "Education") that "the General Assembly 
shall take measures to preserve, &c., such lands as are or 
hereafter may be granted by the U. States, for the use of 
Schools," &c. "The General Assembly shall take like mea- 
sures, &c., of such lands as have been, or may be hereafter 
granted by the U. States to this State for the support of a 
Seminary of learning," &c. It is too obvious for comment, 
that these provisions in both Constitutions were drafted in 
contemplation of making ordinances of relinquishment. — 
Alabama made hers and was afterwards admitted into the 
Union. California has failed to make hers, and why should 
^'- be admitted until she does? The fault of the failure has 
oeei.^jjoljy hers, and whether resulting from inadvertence or 



design, I must think with the Congresses which Jiave gone 
before, that it must be neither wise nor safe to admit her, 
until it is done. 

With the exception of the States formed out of the territory 
I North-West of the Ohio, and already bound by the Ordi- 
i nance of 1787, the only instance (I believe) where Congress 
' neglected to protect the public domain in a new State, 
i (against the eflects of State sovereignty upon the Federal 
right to hold it in a State for extra constitutional purposes) 
by an ordinance of relinquishment prior to admitting her 
into the Union, happened in the case of Arkansas. With- 
out an initiative act of Congress authorizing her to form a 
Constitution and State Government, Arkansas undertook to 
' act under her own promptings, formed her Constitution, exe- 
' cuied an ordinance of relinquishment, submitted both to Con- 
I gress and asked admittance into the Union. Congress ac- 
I cepted her Constitution, but rejected her ordinance (as not 
I conforming to those of the other States) and admitted her 
1 into the Union upon a condition. It will be said, that so far 
: as concerns the necessity of an ordinance prior to admission, 
I it is a precedent in point for California, and it undoubtedly is; 
but whether a precedent, which violated all precedents, is a 
! safe precedent, is another matter. To determine this let us 
; see what was done, and whether it was so done as to save 
j the rights and title of the United States to the public do- 
: main. 

I The 1st section of the act of Congress of June 15, 1836, 
f -J*-, ":>-j"* •>-" «<t>»"-^f JrLajis.Ts shall be one, and is here- 
by declared to be one, of the Lnited States of America, and 
I admitted into the Union upon an equal fooling with the ori- 
\ ginal States in all respects whatever." 

The 8th section enacts, "that the said State of Arkansas 
I is admitted into the Union upon the c.vpress condition that 
j the people of the said State shall never interfere with the pri- 
! mary disposal of the public lands xcithin the said State, nor 
shall they levy a tax on any of the lands of the United States 
within the said State." 
I know of no instance in the legislation of Congress, U[ion 
; a matter of great importance, so fatally jejune and'incautious 
: as this; for it is most obvious from this Sth section, that the 
Congress of 1836 concurred fully and exactly in the opinion 
: of all the Congresses M'hich preceded it, "that the constitu- 
tional effect of makin* Arkansas a sovereign State and re- 
ceiving her into the Union, (without some effective auard 
I against the consequences,) would be to invest her with the 
title to all the public domain within her limits not holden for 
"forts, magazines, arsdnals, dock-yards and other needful 
buildings." This was obviously the opinion of Congress, 
I but how did it protect the United States against that effect 
I of admission ? By a cpndition which teas annulled and de- 
stroyed in the very instdnt tchen the act of Congress contain- 
ing it took effect! Be/ire Arkansas had' accepted the condi- 
tion — before she even knhc of its existence— tJie act of Congress 
had recognized her as dState and received her into the Union! 
True, the Arkansas Cohvention might, if it would, have ful- 
filled the condition by [.xecutinff an ordinance of relinouish- 
ment and delivering it o Congress; but it left her with the 
option to do it or not, jJst as all other States have the option 
to relinquish any rightj of theirs. Call it a right to a relin- 
quishment, if you please, what is it, after all, but one of 
those rights of impej-Ject obligation which the publicists 
speak of as not susceritible of maintenance either through 
force or law? Supposel"the people of the said State" should 
"interfere with the pjimary disposal of the public lands 
within the said State,'|or that her Legislature should "levy 
a tax" thereon— could the State be forced back out of the 
Union for having brokeh a condition she had never accept- 
ed, nor even knew of imtil after she was a sovereign State 
and in the Union, "upon an equal footing with the original 
States in allrespects whatever ? I know of no way of putting 
a State out of the Union but by all the others secedingfram it, 
nor, while she remains in it, do I know of any way of coerc- 
ing her to relinquish jany rights which the Constitution 
makes her own. Thi^s Congress may undoubtedly pro- 
tect the rights of the United States to the public domain 
in California in the same way and to the same extent 
that the Congress of 1836 protected them in Arkansas, 
and those who think that the United JStates jeopard no 
rights of eminent domain, nor that the State acquires 
any by the change, may conscientiously vote for her 
admission now, but how those who concur with the 
nnanimous opinions of all the preceding Congi hses of the 
necessities or risk of admitting her without and until she 
has made an ordinance to divert the public lands from es- 
cheating to the State, can reconcile it to themselves to vote 
to admit her before and without it, is past all my comprehen- 
sion to understand. For my own part, if she is so admitted, 
I am free to declare, and after weighing fairly and fully all 
the antecedents, that I would not give to the value of a 
pinch of snuff for all the residuary rights of the United 
States to the public domain and the gold regions within her 



limits — tKjir should I have a hope of preserving; tlieni, even 
the quasi tenure of a rifrkC of sufferance, but lor my confi- 
dence in the instinctive honor nnd love of justice imphinted 
in the bosoms of the North American race; but with the im- 
mense miirrations going on and contemplated from all parts 
of the world, who can say but that in a twelvemonth, the 
whole power of the State may not be in the hands of men of 



entitled to a trial by jury, not in the jurisdiction they 
escaped from, but in that where they are found ; and 
as vast numbe'-s of thope likely to constitute tlie juries 
do not admit a property in slaves, of course none with 
consciences thus Seicardized would ever find verdicts 
attesting property in the claimants — in otlier words, it is 
dexterous process devised for the emancipation of 



i^ore;>?i birth, who may have small reverence for our rights, 1 slaves ! Then, again, it is strenuously maintained, now 



interests or institutions eitlier, but find charms rather in the 
licentious freedom of Rob Roy McGregor's law upon the 
Scottish Heaths, to 

"Let them take who have the power, 
And let \hemkecp who can." 

The second clause oi the third section of the fouith arti- 
cle of the Constitution of the United States provides that 
"Congress shall have power to dispose of and make all need- 
ful rules and regulations respecting the territory and other 
property belonging to the United States." 

1 have not quoted this provision, because I think it enti- 
tled to an atom of weight in this discussion either way; but 
to exclude the conclusion of any jinfairness in conducting 
it. If 1 have been at all successful in showing that the con- 
vention never designed to confef upon tliis Government a 
power to liold lands within the curtilages of the original 
thirteen States, except for the purposes enumerated in the 
17th clause of the 9th section of Jtlie 1st article, it foUov.s 
as a demonstration, an inevitable cu.'oUar)", that the clause 

-abovequoteJ 



sieved to have been applied to ^/i06x .States, because there 
could have been no possible occasion for conferring on Con- 
gress a power "to dispose of" and "to make all needful rules 
and reimlations" toticl',ing-the Federal property within tliose 
States^ after having already conferred -upon Congress the so- 
vereign pov^er to ^'exercise exdusire legislation in all casss 
whatsoever," not only over all the places described and enume- 
rated— but by consequence, over every species o{7noveable 
Federal property, which might be brought within tiiejurisdic- 
tion of either of them. The power of "exclusive legislation" 
was sovereign, ample and complete, without the clause, and to 
construe the lesser power, hie pari materia with the greater 



and for the first time, that, though every body knows that 
the term, citizen, mentioned in the constitution, refers ex- 
clusively tofree irhile psrsons, yet, that a State.can make citi- 
zens of free negroes so as to entitle them to all "the privile- 
ges and immunities" of citizens in any other State, aad tiiat 
an act of tiie Massachusetts Legislature can repeal the con- 
stitutions of South Carolina and Louisiana, and confer upon 
her free negroes when entering the borders of those States, 
"privileges and immunities" forbidden by the constitutions 
and laws of those States, to the free negroes domiciled there • 
in! The very last instancR I hive heard of touching the pro- 
gress of fanaticism towards the rupture of the Union it aims, 
was the adjournment of the Legislature of the geai t State of 
New York for two successive days, to give the abolitionist 
Gcrrit Smith the use of the Cajiital for the avowed purpose 
of maintaining that the Constitution of the United States, 
far from sanctioning slavery any where, forbids it. 

To conclude — If California is admitted now, and as the is, it will 
be ap'niDtt tl'O luia'tininu- wislies of the paiji ple'^'it biii b'T pn.'si-nt 
iifoiivenficji), agEimst the uifaiiliirTo'us'wishpa of the people oi Deseret, 
so far as California embraces ();j,(.Oll square inilcs of her state limits ; . 
at the imminent i-isk of sacrificing past redemption the whole gold 
region and public domain ; and against the unanimous remonstraiice 
of 10 states of the Union. If to avert these or any of these conse- 
quences, Congress shall deem it necessary to return the California 
Constitution to the Convention, with insti'uctions to ertecute an ordi- 
nance of relinquishment and to reduce her limits, the whole matter 
can be accomplished in the space of three mouths — and in July next, 
and before the usual and important business of Congress will have 
commenced, California can be admitted without an objection from 
the South to her anti-slavery clause ; her senators and representatives 
be received, with privileged seats ad interim in both houses, with 
full allowances of the per diem and mileage during the delay, vs-ith the 
least possible inconvenience to Cahfomia. This measure of conside- 
rate legislation \^^ll remove the most formidable obstacle which exists 



^-iif< 



power which had alaeady provided f6r. every object xcithin ^^,_^.^^_,.^ ^ . ^.__ 

the Slates for wliich such a power coUld be wanted, presents j ^^ the settlement of the territoriar question upon the only basis upon 

which it ever can be satisfactorily settled ; I mean the basis oi the 
Missouri Comprnmise, forn'er excluding slarery North of that line, and 
providing that the states to be formed out of the territory South of that 
line, shall be admitted into the Union jviih or withotit ulavcry. as the Con- 



a point beneath criticism and is really absurd. Well, if this 
clause of the 4th article was never designed to be applied to 
the original 13 States, neither was it designed for, nor can 
it be applied to any other of the States, a7id for that very 
reason— the equality of a\\ the States in rights and powers 
being an immutable principle of the Constitution— which 
has been solemnly recognized and repeated by Congress 
upon the entrance of every new Siat^'into the Union, in the 
emphatic terms that slie is adn^tted "upon an equal i 
footing with the or(o-ina/ States, inall respects whatever^ j 
In the^debates which have been going on in the two Houses i 
of Congress for several months pa$t, this clause has met 
with an extraordinary fate. As tlie terms are explicit as 
language can make them, that the pjwer conferred on Con- 
gress is limited to the object "of disposing of and making" all 
needful rules and regulations "respecting the Territories or 
other property ^'belonging to Ik- United Stdtes," yet 
members from the Free^ States, day by day, one after ano- 
ther, in the House and the Senate, -favelycontend thai it 
confers powers on Congress, not in reference to the property 
of the United States, (as its words declare, and its spirit im- 
ports,) but in reference to the prope,-ty of the citizens of the 
States (which is neither mentionett nor alluded to in the 
clause,) and claim an authority und^ it to expel and exclude 
from the territory a citizen with his slaves ! Well, after a 
free-soiler has thus derived a sovereign right of legislatioii to 
exclude slavery from a territory fipm this pretention'ess 
clause, if he is asked if that clause exitends to the States as 
well as to the territories, he will arswer. Yes, to the public 
domain there, but not to the slaves— cmd thus maintaining the 
startling and disorganising doctrine, that a clause of the 
Constitution of the U. States has ope meaning at one time 
and in one place, and under certain idrcumstances, but quite 
another at a diti'erent time and plac« and under different cir- 
cumstances ! But this is all of a piece with what is in steady 
progress in the free States. No absurdity is so gross, no 
misconstruction so monstrous, that it may not be weighed 
in the balance against Southern rights and the institution 
ofslavery-_ After sixty years of uflbroken acquiescence in 
the behcst\jfthe Convention, that fugitive slaves bedelivered 
upon demand, it is for the firsf time 'iscovered that they are 



vcntions forming their State Constitutions shall decide. Any settle- 
ment short of this will never receive the South's assent. The power 
of numbers may force it on her, but almost it will be a truce and net 
a peace : she can no more consent t* the injustice, than she could 
forget the indisnity olfored or the lasting disgrace with which it 
would brand her. It is amazing and it is alarming to witness the 
shrinking reluctance manifested by some of the best pati'iots from 
the free states, to adopt a basis of adjustment which brought healing 
and peace to the country. Conspicuous and distingiushed among 
these is the worthy and accomplished Gen. Cass, who has heretofore 
displayed his reverence for both the Constitution and the Union, in 
the opinions he has advanced of the equal constitutional rights 
of the South in the ceded Territory, and the manly and tri- 
umphant resistance he made to the Wilniot Proviso I admit 
freely that he puts his objections on high grounds in denying 
the power of Congress to establish the line of the INIissouri 
compromise, and if it Were an or/^nioZ question, I should certainly 
concur with him. Controversies upon momentous constitution- 
al questions, where neither party wiU yield and there is no um- 
pire to decide, must end in compromise or disunicn ; and if in com- 
promise, how eteo is it to he rngttrdca. in J'lllii''', l--ut a= a ^;n/-vJ-- 

which the most urgent political necessity has engrafted upon the Con- 
stitution, bindins upon all men and demanding imphcit observance ? 
Call any just man say, that after the North has infused into the Con- 
stitution a principle of territorial partitions, which has already de- 
spoiled the South of its rights of migration and settlement in tour- 
tifths of the slave territories, and after these spoliations have passed 
into absolute and irreti-ievable execution, that the North can now 
riirhtfullv or honorably abolish the power which in 1820 she insisted 
that the 'Constitution contained, and, hceping ivliat slie has, deprive the 
South of all benefit of her own rule of partition ? Give us one thing 
or the other. Gen. Cass : restore the South to her right ot settlement 
in the ancient slave domains of what are now the state ol Iowa, and 
the territories of Orecon, Nebraska, Jlinncsota, and the whole North- 
western territorv, or "enforce in her favor now the tame Ime of par- 
tition through tlie new Territories, which despoiled her rights in tne 
old ones in lf20. If the California Proviso is to deprive the South of 
7.') per eertum of the whole value of the cession south of 36 deg. 30 
min , and the Executive Proinso is to deprive her of the residuum of 
■25 per centum, it is plain that the exclusion ot the South from the 
whole will be absolute and total, and all the solace left her will be, 
that it was not accomplished through the Wihnot Proviso. 

RANDOLPH OF ROANOKE. 



Ritchie &. Dunnavant, Prs. — Richmond. 



6L 91 



